Karnataka High Court
The Chief Officer vs Mariyambi W/O Abdul Khadar Karajagi ... on 13 December, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC-K:9630
WP No. 203616 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 203616 OF 2024 (GM-CPC)
BETWEEN:
THE CHIEF OFFICER
TOWN MUNICIPAL COUNCIL -SINDAGI
TQ SINDAGI: DIST - VIJAYAPUR
...PETITIONER
(BY SRI. SANJEEVKUMAR C PATIL,ADVOCATE)
AND:
SMT. MARIYAMBI W/O ABDUL KHADAR
KARAJAGI, DEAD BY LRS.
1. SAIPANMULAK
S/O ABDULKHADAR KARAJAGI
AGE: 61 YEARS, OCC. AGRICULTURE
R/O KALYAN NAGAR, SINDAGI
TQ: SINDAGI,
DIST: VIJAYAPUR-586 128.
Digitally
signed by 2. THE PRESIDENT
LUCYGRACE
Location:
TMC - SINDAGI
HIGH COURT
OF DIST VIJAYAUR-586 128.
KARNATAKA
3. THE DEPUTY COMMISSIONER VIJAYAPUR
DIST VIJAYAPUR-586 101.
4. SUB DIVISION OFFICER INDI
SUB DIVISION INDI
DIST VIJAYAPUR-586 128.
5. THE TAHASILDAR
SINDAGI,
DIST: VIJAYAPUR-586 128.
...RESPONDENTS
(BY SRI.D.P. AMBEKAR, ADVOCATE FOR C/R-1
SRI. G.B. YADAV-HCGP FOR R-3 TO R-5
VIDE ORDER DATED: 13.12.2024, NOTICE TO R-2 D/W)
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WP No. 203616 of 2024
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RELEVANT
RECORDS AND ISSUE A WRIT DIRECTION OR ORDER IN THE NATURE
OF CERTIORARI BY QUASHING ANNEXURE-J ORDER DATED 21.11.2024
PASSED BY THE SENIOR CIVIL JUDGE AND JMFC SINDAGI IN EP NO.
02/2013 ON I.A NO. 19 AND ALLOW THE I.A NO. 19
THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
(PER: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR) This petition by judgment debtor No.1 in E.P.No.2/2013 is directed against the impugned order passed on I.A.No.19 whereby the said application filed by the petitioner - JDR 1 under Section 47 CPC was rejected by the Executing Court.
2. Heard learned counsel for the petitioner and learned counsel for the caveator - respondent No.1 and perused the material on record. For the order proposed notice to respondent Nos.2 to 5 is dispensed with.
3. A perusal of the material on record will indicate that respondent No.1 - plaintiff instituted a suit in O.S.No.69/2005 against the petitioner - defendant No.1 and respondent Nos.2 to 5 -3- NC: 2024:KHC-K:9630 WP No. 203616 of 2024
- defendant Nos.2 to 5 for declaration, possession, mandatory injunction and other reliefs in relation to the plaint 'A' schedule property measuring 2 acres 10 guntas in Sy.No.842 of Sindagi village as described in the schedule to the plaint. The said suit having been contested by petitioner - defendant No.1, the Trial Court proceeded to pass the judgment and decree dated 25.09.2006 decreeing the suit in favour of respondent No.1 -
plaintiff against the petitioner - defendant No.1 and other defendants. The operative portion of the judgment and decree passed by the Trial Court is as under:
" The suit of the plaintiff is hereby decreed. The plaintiff is hereby declared as owner of 2-acres 10 guntas of land out of Sy.No.842 shown in Schedule A of the plaint.
The defendants are hereby directed to hand over the possession of the suit Schedule A land to the plaintiff.
The defendants are hereby directed to remove the encroachments at their own costs, it the defendants failed to remove the encroachments, the plaintiff is at liberty to take action according to law, mandatory injunction is granted as prayed for.
There is no order as to costs.
Draw up a decree accordingly."-4-
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4. Aggrieved by the aforesaid judgment and decree passed in O.S.No.69/2005 by the Trial Court, the petitioner -
defendant No.1 and respondent No.2 - defendant No.2, who are the Chief Officer and President of Sindagi Town Municipal Council preferred an appeal in RFA No.448/2008. In the said appeal, apart from other contentions, the petitioner also took up a specific contention regarding identity of the plaint schedule property, which was noted by this Court, who proceeded to dismiss the appeal filed by the petitioner and the President of the Town Municipal Council by passing the judgment and decree dated 03.07.2014, which reads as under:
" Heard the learned counsel for the appellant and the learned counsel for the respondents.
2. The parties are referred to by their ranking before the Trial Court, for the sake of convenience.
3. The appellant was the Defendant No.1 before the Trial Court. The suit was filed by Respondent No.1 - plaintiff. The plaintiff's case was that land in Sy.No.842 of Sindagi town measuring 10 acres 35 guntas was the property of the plaintiff and the plaintiff had sold 8 acres 25 guntas out of this extent and had retained 2 acres 10 guntas. Defendant No.1 is said to have acquired the land by recourse to the provisions of the Land Acquisition Act, 1894 for forming a -5- NC: 2024:KHC-K:9630 WP No. 203616 of 2024 Housing Layout. However, it transpires that the Village Accountant had not taken into account the extent of 2 acres 10 guntas of land that was retained by the plaintiff and the Record of Rights did not reflect the name of the plaintiff in respect of the said extent.
The petitioner having noticed that her name was not entered in respect of 2 acres 10 guntas, had made a representation dated 30.01.1999 and since no action was taken on the said representation, a writ petition was filed before this Court in its writ jurisdiction in W.P.No.5978/2000, which was allowed by an order dated 30.05.2000, directing the authorities to consider the representation and take appropriate action. It is pursuant to which her name was entered in the revenue records as on 29.06.2004. Upon noticing that the Defendant No.1 was proceeding to form plots on the land in Sy.No.842, and that there was encroachment on the extent of 2 acres 10 guntas of the land of the plaintiff, the plaintiff had issued notice to the Town Municipal Council, Sindagi on 17.08.2004, not to interfere with the suit property. Since the Defendant No.1 had continued to relentlessly encroach on the property, the plaintiff was constrained to issue a further notice to Defendants 3 to 5 and Defendant No.3 is said to have issued a letter to Defendants 1 and 5 dated 9.9.2004 directing the defendants to take action for compliance with the notice. But, Defendants 1 and 5 had ignored the same and illegal structures were sought to be brought up on the suit property. It is in that background that the plaintiff filed the suit. The suit was contested by Defendants 1 and 2 who denied the -6- NC: 2024:KHC-K:9630 WP No. 203616 of 2024 plaint allegations and that the plaint was bereft of material particulars. It was denied that the plaintiff was the owner of the suit property, while admitting the contents of Paragraph 4 of the plaint. In Paragraph 4 of the plaint, the plaintiff had contended that Defendant No.1 had formed a layout in a portion of Sy.No.842 and it was admitted that the plaintiff had instituted proceedings and obtained orders against the Village Accountant and Tahsildar without the knowledge of Defendants 1 and 2. It is during the pendency of those proceedings that the layout was sought to be formed and since the land has been acquired under the due process of law, and sites have been allotted to third parties in the year 1992 itself, the plaint has conveniently suppressed the circumstance that the land has been acquired and distributed to third parties. The suit having been filed in the year 2005 when third parties have been put in possession of the land in the year 1992, the suit was hopelessly barred by time and therefore, the suit was also bad for non-joinder of necessary parties and sought that the suit be dismissed. On the basis of these pleadings, the Trial Court framed the following issues:
"1. Whether the plaintiff proves that he is the owner of 2 acres 10 guntas of property out of Sy.No.842?
2. Whether the defendants prove that suit of the plaintiff is false?
3. Whether the defendants 1 and 2 prove that the suit land is acquired in RB/LAG/SR.697/82-83 dated: 23.2.1984 for grant of house site and allotted house sites in the year 1992?-7-
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4. Whether the defendants prove that the suit of the plaintiff is barred by limitation?
5. Whether the defendants prove that the suit suffers from non-joinder of necessary parties?
6. Whether the defendants prove that this court has no jurisdiction to entertain the suit?
7. What decree or order?"
The court below answered Issue No.1 in the affirmative and the other issues in the negative and decreed the suit. It is that which is under challenge in the present appeal.
4. The learned counsel for the appellant would contend that the court below has proceeded on incorrect proposition and facts which are not supported by material evidence and has also proceeded on assumptions which are clearly contradicted by evidence on record.
It is pointed out that the plaintiff claimed that possession had been taken over by the defendants and illegal structures were permitted to be put up, but the plaintiff had not sought for possession of the property and the plaint is totally silent about the date on which the plaintiff was dispossessed and therefore, if the knowledge of the plaintiff as to the dispossession was in the year 1999, it is inexplicable that the suit came to be filed only in the year 2005 and therefore, in the face of the circumstance that Defendant No.1 had acquired the land in the year 1984 and handed over possession of sites formed to third parties in the year 1992, the case of the plaintiff sought to be made out with reference to a period subsequent to 1992, has not been explained by the plaintiff. Therefore, the suit is hopelessly -8- NC: 2024:KHC-K:9630 WP No. 203616 of 2024 barred by limitation as the cause of action if any arose when the plaintiff was dispossessed and when possession was asserted by third parties as early as in the year 1992. The plaint being silent about these crucial dates, was fatal to the suit and it is to cover up the bar of limitation that the plaintiff has deliberately chosen not to mention the relevant dates. The court below having overlooked this significant circumstance even though an issue as to whether the suit was barred by limitation has been framed, it is addressed in the wrong perspective and not with regard to the actual circumstances.
It is further pointed out that the description of the suit property is vague and there is no material produced to demonstrate that the boundaries are demarcated and that the 2 acres and 10 guntas of land could be culled out of the total extent of 10 acres and 35 guntas of land.
Further, it is contended that the plaintiff claiming to be the owner of the suit property, had not chosen to produce any sale deed or title deed in respect of the suit property. It was incumbent on the plaintiff who was seeking declaration of title and injunction, to have produced the sale deed or the title deed in respect of the property, which was not forthcoming, in the absence of which the court below could not have addressed the title of the plaintiff. This is a glaring irregularity which goes to the root of the matter and the suit itself ought to have been dismissed on the primary ground that the plaintiff had not produced and proved her title.
It is in this context that an application was filed by the plaintiff before this Court seeking to produce additional documents. Significantly, a certified copy of the sale deed -9- NC: 2024:KHC-K:9630 WP No. 203616 of 2024 under which the plaintiff had originally purchased the 10 acres and 35 guntas of land was sought to be produced. As this Court felt that it was necessary for the said document to be placed on record, as the objection raised or the arguments canvassed by the learned counsel for the appellant - Defendant No.1 that in a suit for declaration of title and injunction, the Title Deed ought to have been produced, was certainly an objection which was tenable and since the document of title was indeed available, but had not been produced and since the plaintiff died during the pendency of the suit and it is the legal representatives who have made efforts to obtain a certified copy of the sale deed and had sought to explain the lacuna if any in such a document not having been produced, would stand cured and therefore, it was directed that the parties tender evidence before the Additional Registrar General of this Court and such evidence is placed on record, whereby the document in question has been marked in evidence.
5. The learned counsel for the plaintiff - Respondent No.1 therefore would submit that the primary contention of the defendants is that by a mistake or design, if all the 10 acres and 35 guntas of land was utilized for the formation of the layout and thereby claiming that the plaintiff was dispossessed, there is no evidence tendered by the defendants to establish this fact of such dispossession. The further assertion that in the year 1992, the defendant - Municipal Council had handed over possession of plots formed, to third parties, is also not established by tendering any evidence. It is the claim made in the written statement on behalf of the Municipal Council. The plaintiff however,
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NC: 2024:KHC-K:9630 WP No. 203616 of 2024 after having found that her name was not reflected in the revenue records in respect of 2 acres 10 guntas of land, had taken steps to correct the same and those proceedings have culminated in the authorities carrying out corrections in the Record of Rights in respect of the said extent. It is thereafter when the encroachment sought to be continued, that the suit was filed after due notice to the defendants. The court below had framed an issue as regards limitation and has addressed this aspect namely, that the defendants claim to have formed sites in the suit property as early as in the year 1992, but since no evidence was tendered, the plaintiff however had proved that there was interference in the year 1995 and it was blatantly discovered that her name was not reflected in the revenue records and then had sought steps to make correction. Even then, the encroachment continued and the suit was filed. Therefore, the question of limitation did not arise.
The learned counsel for the plaintiff would point out that insofar as the contention that the boundaries are vague and description of the land is not sufficient to cull out the same from the total extent of 10 acres 35 guntas is concerned, there is material on record to indicate that the Assistant Director of Land Records (ADLR) had surveyed the property and had demarcated the same and has indicated by metes and bounds and with exact location of the 2 acres and 10 guntas of land as per Exhibit P-21, which is available on record. Therefore, the contention that there is no identification of the location of the suit property or its extent or their boundaries, is an incorrect assertion with reference to the material on record.
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NC: 2024:KHC-K:9630 WP No. 203616 of 2024 Insofar as the further contention that the sale deed was not produced and therefore, the relief of declaration could not have been granted, was not relevant, as there were other supplementary documents which amply indicated that she was indeed the owner of the property, which is the reason why the Trial Court has not even framed an issue in that regard. In any event, if it was a lacuna that went to the root of the matter, the same stands cured by virtue of the document of title having been produced before this Court. Notwithstanding that certain damaging statements have been elicited from the witness who was examined to mark the documents, the same would not be relevant, for the reason that the sale deed would speak for itself and the witness being called upon to explain the contents of the document, is not permissible in law, as the documents produced before the Court would speak for itself and there can be no evidence tendered for or against the document to overthrow the document. Hence, there is no relevance in the admissions extracted in the cross-examination to the effect that the deponent does not know the extent of land purchased under the sale deed or the vendor of the property.
6. In the light of the above rival contentions, the question for consideration would be, whether the Trial Court was justified in decreeing the suit as sought for in the above facts and circumstances.
The primary contentions of the defendant is that the plaint is silent as to the date on which the plaintiff was dispossessed and without indicating the particulars of the date on which the plaintiff was dispossessed, the very cause of action and as to whether the cause of action arose, is left
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NC: 2024:KHC-K:9630 WP No. 203616 of 2024 unanswered, in which event, the contention that the land was acquired as early as in the year 1984 and that sites were formed in the year 1992, were significant circumstances which casts the burden on the plaintiff to establish that there was no such dispossession till such time that a complaint was made for correction of the revenue entries and even much later, a suit came to be filed in the year 2005. The long gap of period between 1984 and the land was acquired and the suit having been filed in the year 2005, is completely glossed over by the Trial Court is concerned, it is to be noticed that the burden was on the defendant to establish that the land had been formed into sites and handed over to third parties in the year 1992. Except for pleadings in the written statement, there is no evidence tendered in this regard. Therefore, the complaint of the plaintiff in the suit that there was active encroachment which required to be prevented being raised in the year 2005, and thereafter having been pursued, cannot render the suit as being barred by time. Therefore, in 1999 when the plaintiff's representation to the revenue authorities to correct the revenue entries was ignored, a writ petition having been filed and thereafter directions having been issued and the revenue authorities having recognised the petitioner's right to the extent of land the same having attained finality, would not enable the Defendant No.1 to claim that possession had been taken and handed over to third parties. Those proceedings have been left unchallenged. The only lacuna that could possibly be raised as being an irregularity, was the non-production of any Title Deed. That defect if it could be called a defect, has been cured by the sale deed having
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NC: 2024:KHC-K:9630 WP No. 203616 of 2024 been filed before this Court, albeit certified copy of the sale deed, as the plaintiff was no more and the suit was being continued by her legal representatives. Therefore, that defect stood cured.
Insofar as the claim that possession having been taken over by the defendant, the plaintiff could not recover possession much after the period of limitation is concerned, it is not evident as to the right under which the defendants claim to have taken over possession and claim to have perfected their title. The Defendant No.1 is an arm of the State and to claim that it could assert adverse possession in respect of private property, is unknown to law. The State is bound to protect private property from such illegal encroachment and the State is empowered to acquire any land only under its power of eminent domain for a public purpose. It does not lie in the mouth of the defendant who is an arm of the State Government to claim that it could encroach on private property and claim adverse possession. This is unknown to law and hence, the claim that the defendant - Town Municipal Council had perfected its title and therefore, the suit was barred by time, is a contention that cannot be accepted and further, in any event, it cannot be said that the suit was barred by time, for a suit for recovery of possession could be filed within 12 years from the date of cause of action. If it was treated that the cause of action arose in the year 1999 when the plaintiff claims to have realised that the suit property was in the name of the defendant in the revenue records, the suit having been filed in the year 2005, was well within time and therefore, there is
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NC: 2024:KHC-K:9630 WP No. 203616 of 2024 no substance in this appeal and the appeal stands dismissed."
5. Aggrieved by the impugned judgment and decree of the Trial Court and this Court referred to supra, petitioner approached the Apex Court in SLP No.18724/2014, which was dismissed by the Apex Court vide order dated 01.12.2014, thereby confirming the judgment and decree of the Trial Court as well as this Court referred to supra.
6. In the meanwhile, respondent No.1 - plaintiff - decree holder having instituted the instant E.P.No.2/2013, petitioner - JDR No.1 filed the instant application under Section 47 CPC seeking rejection of the execution petition by discharging petitioner - JDR No.1 from its liability of complying with the decree, the said application having been opposed by respondent No.1 - plaintiff, the Executing Court proceeded to pass the impugned order rejecting the application by holding as under:
Order On IA No.19 filed by Applicant/ U/s. 47(1) of the CPC "Applicant / Judgment Debtor No.1 has filed this IA seeking to discharge himself from liability and prayed for rejection of the Execution Petition.
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2. In the affidavit filed by the applicant with his petition, it has been stated that the entire suit property has already been sold. Land Sy No. 842 measuring 09 Acres, has been acquired by the Government of Karnataka for residential purpose Houses ate built in the said suit property by the beneficiaries. The suit property claimed by the decree holder is not identifiable. The decree has been obtained les practicing fraud as the court jus has been further stated that no land remains for repossession of the suit land and hence prayed to allow this application as prayed above.
3. The decree holder has filed objections and submitted that the judgment debtor No.1 appeared on 29.11.2013 and since then has not complied with the order passed in Old No.60/2008 Time was also sought to hand over possession Time has been taken to supply the sugarcane, Judgment debtors No.1 and 2 lave Blest RFA No 848/2008 in the High Court of Karnataka, Kalaburgi bench. After hearing the parties, the judgment of the trial court in 05 no.69/2005 was confirmed vide judgment and decree dated 03.07.2014.
Thereafter, SLP.No. 18724/2014 was preferred before the Supreme Court filed which was dismissed on 01.12.2014. That due to the mistake of judgment debtors no 1 and 2, the land of the decree holder has been encroached. Despite the orders of the A.C. and the DC directing them to rectify the mistake, without even considering the same, the judgment debtors to illegally and mala fidely deprive/dupe the decree holder of his property have filed this application, they have prayed for dismissal of the application.
4. The following points arise for my consideration
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1. Are there grounds for granting the interim application No. 19 filed by the applicant/Judgment debtor no.1 u/s47(1) of the CPC?
2. What order?
5. Heard the arguments of both the parties and perused the records, 1 have answered the above points as follows.
Point No: 1: Negative, Point. No, 2: As per the final order, for the following reasons, REASONS
6. The Applicant/Judgment debtor no.1 has filed this application for discharging his liability in this Execution Petition and has prayed for rejecting the execution petition. The decree holder has filed this application seeking delivery of possession of the suit land bearing Sy. No.842 of Sindagi Village, to the extent 2 Acres 10 guntas.
7. The mother of the decree holder deceased Marembi W/o. Abdulkhadara Karjagi, has filed ORIGINAL SUIT NO. 69/2015 PRAYING TO DECLARE herself to be the OWNER of suit property bearing Sy.No.842 of Sindagi Village on the extent 2 Acres 10 guntas and for seeking delivery of possession from judgment debtors/defendants. The salt was decreed again defendants and against the sane RPA N448/2nd by the defendant and the same was dismissed. Hence, for the execution of the said decree the present execution petition is filed.
8. The decree holder had find the objections for the IA filed by the Judgment debtor, Judgment debtors No. 1 and 2 submitted that they ahs filed RFA No. 448/2005 in the
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NC: 2024:KHC-K:9630 WP No. 203616 of 2024 High Courts of Karnataka Kalaburagi bench After hearing the parties the judgment of the trial court no.09/2005 was continued vide judgment and decree dated 03.07.2014. Thereafter, SL No 18724/2014 was preferred before the Supreme Count which was dismissed The decree has been obtained by practicing fraud on the court, its has been further stated that suit land is not identifiable. In support of judgment debtor no.1, chief officer, TMC, Sindagi was examined as RW-1 and Ex-R1 to Ro were marked, Ex-R1 to 5 is the certified copy of the sale deed. Ex-R-6 is the certified copy of the award. And Ex-R6A was marked an Annexure.
9. The decree holder was examined as PW-1 and marked Ex-P1 to 37. Ex Pl is the certified copy of the plaint in Original suit no. 69/2015. Ex-P2 is the certified copy of the judgment in Original suit no, 69/2015. Ex-P3 is the certified copy of the Decree in Original suit no. 69/2015. Ex-P4 is the letter to the Tahsildar. Ex-P5 and 6 are the letter to the DC, Vijayapura. Ex-P7 is the application to Tahsildar. Ex-P8 is the application to the Chief Officer, TMC. Ex-Ps is the letter written to the Tahsildar. Ex-P10 is the copy of the passed in RFA No.448/2008. Ex-P11 is the certified copy of the Judgment in Original suit no.28/2000, Ex-P12 is the certified copy of the Decree in Original suit no. 28/2000. Ex-P13 is the certified copy of the FT Sheet. Ex-P14 is the certified copy of the application. Ex-P15 and 16 are the postal receipts. Ex- P17 is the certified copy of the village Form No.7 of Sy.No.842. Ex-P18 is the certified copy of the ME No.6035. Ex-P19 is the certified copy of the order passed in WP No.5978/2000, ExP.20 certified copy of the order in RTS CR NO. 37/2000-01. Ex-P21 is the certified copy of the order in
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NC: 2024:KHC-K:9630 WP No. 203616 of 2024 RTS AP NO. 34/2000-0. Ex-P.22 and 23 are certified copies of the notice. Ex-.P.24 is the letter issued to the Tahsildar and Chief Officers Municipality, Sindagi. Ex-P25 is the certified copy of the ME No.210/2006. Ex-P26 is the certified copy of the letter written by DC, Vijayapura to Tahsildar Sindagi. ExP- 27 is a certified copy of a letter written by Tehsildar Sindagi to the judgment debtor. A.P.28 is a certified copy of the letter written by Tahsildar Sindagi to Village Accountant Sindagi. Ex-P29 is the certified copy of the plaint and hand sketch submitted in Original suit no. 28/2009. Ex-P30 P32 is the certified copy of the written statement filed by defendant No. 2, 4, 6 Ex.P33 is the certirfied copy of the judgment in R. No.108/2018. Ex-P34 is the certified copy of the Decree in R.No.108/2018. Ex-P35 is the certified copy of the a certified copy of the judgment dated in M.No.77/2004-05, Ex-P 36 is the RTC of S.No.842. Ex-p-37 is the certified copy of the PT sheet submitted by taluka surveyor Sindagi.
10. On examination ExP.17 Sy No. 847 has total area of 21 acres 30 guntas land, out of which 04 acres 20 guntas land appears to be Pot kharaba, Ex. P-17 is the revenue record. It is seen from Ex. R1 whichi s a certified copy of the sale deed that the plaintiff Marembi W/o Abdulrajak Karjagi Purchased 8 Acres 25 Guntas, Kharab @ Acres 10 Guntas, totally to 10 Acre 35 Guntas through a registered sale dee. The purchaser deceased Marembi had filed No. 69/2005 against the defendants stating that she had sold 08 acres 25 Gunte in the land purchased by her and 02 Acre 10 gunte remains with her, and the said suit has been decree. The Said decree has attained finally.
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11. A copy of the said judgment is marked as Ex.P.2 and a copy and the decree an Ex-P3 The suit of the plaintiff is decreed on 25.09.2006. The order at Ex. P2 reads as under:
The suit of the plaintiff is hereby decreed The plaintiff is hereby declared as owner of. 02 acre 10 guntas of land out of Sy. No.842 shown in schedule A of the plaint.
The defendants are hereby directed to hand over he possession of the suit schedule-A land to the plaintiff.
The defendants are hereby directed to remove the encroachment at their own costs, if the Defendants failed to remove the encroachments, the plaintiff is at liberty to take action according to law, mandatory injunction is granted as prayed for.
There is no order as to costs Draw up a decree accordingly.
12. The RFA No.448/2008 and SLP No. 18724/2014 filed against Ex P.2 decree have been dismissed. There is no dispute about this. Ex.P.37 PT sheet is as follows-
A Sheet Village: Sindagi TQ: Sindagi Dist: Vijayapura Year -2003-04
1. Measurement direction No. RTC-cr 34/2001 dated" 14.10.2003/1550 issued by the OFFICE OF THE Assistant Commissioner, INDI,
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2. Measurement Order in R.T.S 34/2000-01 issued by the OFFICE OF THE Tahsildar, INDI, Date of Measurement: 16.12.2003.
The reasons for measurement: To ascertain who is in possession of 02 acres 10 guntas of sy no. 842, measuring 2 Acres 30 guntas as directed by the High Court of Karnataka Bangalore.
Present at time of survey:
Chief Officer, TMC, Sindagi Village Accountant Sindagi TAPE:
OF: Fixed stones on land during measurement. ON: Stones as per use during measurement Sy No.: document(boundary mark as per tippan) Boundary mark as per cultivation Boundary as per RoR-Hissa Hissa boundary asf per wahiwat.
It is noted regarding the suit property that the 02. Acres 10 guntas shown by this colour should come to applicant Marebi Abdulkhadar Karjag, the neighboring har TMC has encroached.
13. It is declared In Original Bult No, 6/9/2006, that the deceased Marembi W/o Abdulkhadar Karjagi is owner of 2 Acres 10 Guntas in By No. 842. It is directed to hand over possession of the said 02 acres 10 guntas land to the plaintiff from the defendants. The court is an execution court, it is possible to pass any against the decree.
14. The OS. no. 28/2009 filed by the persons claiming to be encroachers and possessors of 2 Acres 10 Guntas is
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NC: 2024:KHC-K:9630 WP No. 203616 of 2024 dismissed. As per the decree in OS No.69/2005 the defendants are required to hand over possession of 02 acres 10 guntas of the suit property bearing Sy.No.842 to the plaintiff/Legal heirs of the plaintiff. The plaintiff having expired, her son S/o Abdul Qadar Karjagi has filed this execution petition. The existence of the suit property is shown as per Ex.P37 PT sheet in OS No. 69/2005. Under such circumstances, the argument of the JDRs that the suit property is not in existence cannot be accepted. After full trial, when the title of plaintiffs over 2Acre 10 guntas of Sy No.842 has been declared by this court, the argument of the JDRs that the plaintiff has sold out the entire land which she had purchased and 02 acres 10 guntas of land is no longer with the plaints cannot be accepted. Hence, it is not possible to discharge the Diks no.1 from the liability under the decree in 08 No. 69/2005. The execution petition is in consonance with the decree in OS No.69/2005 and there is no question of rejecting the same. Thus, it is not possible to allow the application of the JDR no.1. Accordingly, point no.1 is answered in the negative.
15. Point No.2: In light of the reasons and answers provided to point no.1 above, the following order is passed:
ORDER IA. No.19 u/s47(1) of CPC filed by JDR No.1/Applicant is rejected."
7. A perusal of the aforesaid facts and circumstances and material on record, in particular, the previous round of litigation wherein all contentions urged by the petitioner - JDR No.1 in the
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NC: 2024:KHC-K:9630 WP No. 203616 of 2024 suit as well as in the present application - I.A.No.19 have been correctly and properly considered and appreciated by the Executing Court while dismissing the application filed by the petitioner. The Executing Court has come to the correct conclusion that the various contentions regarding title possession, identity, location, etc., having been urged by the petitioner and expressly rejected by the Trial Court and this Court and confirmed by the Apex Court in SLP No.18724/2014, it was not open for the petitioner to request the Executing Court to come beyond / behind the decree passed by the Trial Court and this Court during execution proceedings, which is impermissible in law.
8. Under these circumstances, I am of the considered opinion that the Executing Court was perfectly justified in rejecting the application filed by the petitioner, which had been consequently filed with an intention to protract the proceedings in execution so as to deprive respondent No.1 - decree holder to enjoy the fruits of the decree and the said conduct of the judgment debtor having been deprecated by the Apex Court as well as this Court in several judgments including the case of Rahul S.Shah Vs. Jinendra Kumar Gandhi (2021) 6 SCC 418, I am of the view that the
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NC: 2024:KHC-K:9630 WP No. 203616 of 2024 impugned order passed by the Executing Court cannot be said have suffered from any illegality or infirmity nor can the same be said to be capricious or perverse or resulted in miscarriage of justice warranting interference by this Court in the exercise of its jurisdiction under Article 227 of the Constitution of India as held in Radhey Shyam Vs. Chhabi Nath - (2015) 5 SCC 423 case.
Hence, I do not find any merit in the petition and the same is hereby dismissed.
Sd/-
(S.R.KRISHNA KUMAR) JUDGE SV List No.: 1 Sl No.: 20